Kunkel v. Brown

• Decision Date: 06 February 1900
• Docket Number: 340.
• Citation: 99 F. 593
• Parties: KUNKEL v. BROWN.
• Court: U.S. Court of Appeals — Fourth Circuit

99 F. 593

KUNKEL v. BROWN.

No. 340.

United States Court of Appeals, Fourth Circuit.

February 6, 1900

Milton G. Urner and W. P. Maulsby, Jr., for plaintiff in error.

George Weems Williams and Phillip B. Watts, for defendant in error.

Before SIMONTON, Circuit Judge, and PAUL and BRAWLEY, District Judges.

SIMONTON Circuit Judge.

This case comes up on writ of error to the circuit court of the United States for the district of Maryland. The action was brought by George R. Brown against Mary E. Kunkel. The cause of action is the statutory liability of the said Mary E Kunkel as stockholder in the Western Farm Mortgage Company. This corporation was created under the laws of the state of Kansas, and by the laws of Kansas each stockholder, in case of the insolvency of a corporation, is liable to the creditors of the corporation in the amount due on his stock and an additional amount equal to the stock owned by him.

The plaintiff in his declaration alleges that he is a judgment creditor of the corporation; that it is insolvent; that the defendant owns the amount of $2,200 of its stock, wherefore he is entitled to have from her, for the par value thereof $2,200; that he has demanded of her the same; and that she has not paid it, and wholly neglects and refuses so to do wherefore he claims $2,500. To this declaration defendant demurred. The demurrer was overruled. She then filed sixteen pleas on 31st July, 1897. To eleven of these demurrers were sustained, and issues joined. On 2d May, 1899, the defendant filed five special additional pleas. The third, fourth, and fifth of them for the first time set up the defense most insisted upon. They allege, in substance, that the defendant owned 20 shares only in the Western Farm Mortgage Company; that the value of these was $100 per share; that her liability could not exceed $2,000; and so she pleads to the jurisdiction of the court. On motion of plaintiff, these three pleas were not received. The defendant then moved to dismiss the plaintiff's suit, accompanying his motion with six exhibits, one of them going to show that the plaintiff had sued the defendant in a court of the city of Baltimore on the same cause of action, alleging that she owned 20 shares of stock, and not 22, as now alleged. The other exhibits tend to show that the recognized counsel of plaintiff had ample means of knowing, and, in fact, did know, that the defendant owned only 20 shares of stock. This motion was overruled in the court below. The cause was submitted by written stipulation to the court, without the intervention of a jury, and a verdict was found for plaintiff in the sum of $1,458.60 and costs. Exceptions were taken, a writ of error was sued out, and the case is here on seven assignments of error. They are, in substance, these: That the plaintiff in error (defendant below) is liable only to the amount of stock held by her; that she held stock in amount $2,000; that this is the utmost extent of her liability, and that the court had no jurisdiction over her in this case; that there is a fatal variance in the allegation in the declaration that she owned $2,200 worth of stock, the proof being that she owned only $2,000 worth; that the court erred in admitting certain depositions de bene esse, the notice of which fixed the 20th July as the day for taking them, while the return of the notary public showed that they were taken on 19th, the day before. The motion was made to suppress these depositions, but was refused by the court under its rule 32, par. 2:

'Exceptions to the execution, and return of a commission or deposition shall be made before the jury is sworn in the case, otherwise they will be considered as waived. If a commission shall have been returned and opened, and notice thereof given to the opposing party fifteen days before the commencement of the term, exceptions to the execution and return thereof shall be filed on or before the second day of the term, or shall be considered as waived. Exceptions so filed shall be heard before the jury is sworn, and may be heard at any time previously by direction of the court.'

The court, cognizant of the circumstances, applied the rule. We see no error.

The question in the case is that to the jurisdiction. In a case of this kind, in which the jurisdiction depends on the diversity of citizenship, the amount in controversy must exceed $2,000, exclusive of interest and costs. In order to determine the question of jurisdiction, we must look to the record. Ex parte Smith, 94 U.S. 455, 24 L.Ed. 165. It will be determined from the fact of the pleadings. Vance v. W. A Vandercook Co., 170 U.S. 472, 18 Sup.Ct. 645, 42 L.Ed. 1111. In Barry v. Edmunds, 116 U.S. 550, 6 Sup.Ct. 501, 29 L.Ed. 729, it was held that a suit cannot properly be dismissed by a circuit court of the United States as not substantially involving a controversy within the jurisdiction of the court, unless the facts made to appear on the record create a legal certainty of that conclusion. See, also, Scott v.Donald, 165 U.S. 58, 17 Sup.Ct. 265, 41 L.Ed. 632. So, in these cases, when the action was in tort, and the damages were laid at a sum exceeding the jurisdictional amount, the suits were sustained, although the property by which the tort was inflicted was small in value. It is true that in some actions ex contractu, in which the amount recoverable is liquidated by the terms of the agreement, and this is disclosed on the record, this will settle the question of jurisdiction, notwithstanding the claim of the plaintiff for a much larger sum as damages. But this must be ascertained from the face of the pleadings, as in Vance v. W. A. Vandercook Co., supra. So, also, if it be discovered that the plaintiff in bad faith, improperly or collusively, made a case simply to secure the jurisdiction of the federal court, on such discovery the suit will be dismissed, notwithstanding that on the face of the pleadings the court has jurisdiction. Williams v. Nottawa Tp., 104 U.S. 209, 26 L.Ed. 719. But, with this exception, the nature of the case, as stated in the pleadings, must determine whether the amount really in dispute is...